The opinion of the court was delivered by: Thomas A. Varlan United States District Judge
This civil action is before the Court on defendants' Motion to Dismiss [Doc. 3], Renewed Motion to Dismiss [Doc. 9], Third Motion to Dismiss [Doc. 23]*fn1 , and plaintiff's Motion to Certify Questions of Law to the Tennessee Supreme Court. [Doc. 12.] The Court heard oral argument on these motions on May 22, 2007, and the matter is now ripe for adjudication. For the reasons set forth below, the Court will grant defendant's motions to dismiss and deny plaintiff's motion to certify.
As the Court is required to do on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court will construe the Second Amended Complaint [Doc. 22] in the light most favorable to plaintiff, accept all well-pleaded factual allegations as true, and determine whether plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Trzebuckowski v. City of Cleveland, 319 F.3d 853, 855 (6th Cir. 2003).
The plaintiff, Cleo E. Ellis ("Plaintiff"), was employed by the defendant, Rexnord Industries L.L.C. ("Defendant"), from August 10, 1987, until the involuntary termination of his employment on February 13, 2006. [Doc. 22 at ¶ 11.] At the time of termination, Plaintiff's job title was "Set-up and Operate II," which required Plaintiff to operate heavy machinery, to load steel slugs weighing as much as fifty pounds into the machinery, and to step inside the machinery to balance the weight. [Id. at ¶¶ 12, 15, 16.] A machine malfunction could be life threatening to anyone inside or operating the machine. [Id. at ¶¶ 17, 18.]
On or about December 9, 2005, Machine # 798 had mechanical problems and was repaired. [Id. at ¶ 13.] On Friday, February 10, 2006, Plaintiff was assigned to operate two machines, one of which was Machine # 798. [Id. at ¶ 14.] That same day, Plaintiff reported to his cell leader, George Barbee ("Barbee"), that Machine # 798 appeared to be malfunctioning, as its turret was not operating smoothly and was making unusual noises. [Id. at ¶¶ 19-21.] Barbee did not have the authority to shut down the machine, so he contacted the Business Unit Manager, Rob Hill ("Hill"). [Id. at ¶ 23.] Hill did not know what was wrong with the machine and ordered Plaintiff to use Machine # 798 despite Plaintiff's concerns. [Id. at ¶ 24.] Plaintiff refused to use Machine # 798 because he felt it was unsafe and asked that a maintenance call be placed on the machine. [Id. at ¶ 26.
At that point Hill contacted the Lead Man, Ricky Foster ("Foster"). [Id. at ¶ 27.] Plaintiff told Foster that Plaintiff thought Machine # 798 was unsafe and that Plaintiff would not operate the machine. [Id.] Foster reported Plaintiff's allegations that Machine # 798 was unsafe to the Human Resource Manager, Thomas Plachinski ("Plachinski"). [Id. at ¶ 29.] Hill and Plachinski decided to investigate the matter further, but no one was available that day to properly evaluate Machine # 798. [Id. at ¶ 30.] Plaintiff was allowed to work on another machine in lieu of Machine # 798. [Id. at ¶ 31.]
On Monday, February 13, 2006, Plaintiff reported to work and was again assigned to Machine # 798, which was in the same condition it had been in on February 10, 2006. [Id. at ¶¶ 32-33.] Plaintiff again refused to operate the machine because of safety concerns. [Id. at ¶ 34.] The Lead Man of Maintenance, Randy Baumgardner, and the Plant Project Manager, Roger Tackett, examined Machine # 798, but had differing opinions over what was causing the machine to catch and drag. [Id. at ¶¶ 36-37.]
Plaintiff was called into a meeting with Plachinski, Hill, and the Operations Manager, William Randolph ("Randolph"). [Id. at ¶ 38.] During the meeting, Plaintiff was told that he could either operate Machine # 798 or have his employment terminated for insubordination. [Id. at ¶ 39.] In response, Plaintiff asked for an outside company to inspect the machine or that he be allowed to perform the job of Operator rather than his current position, but both requests were denied. [Id. at ¶¶ 40-41.] Plaintiff's employment with Defendant was terminated at approximately 10:30 a.m. on February 13, 2006. [Id. at ¶ 43.]
Later that same day, an outside maintenance company was asked to perform a surface inspection of Machine # 798. [Id. at ¶¶ 44-45.] The outside maintenance company was unable to determine what was causing the problem without taking the machine apart, which Defendant forbade. [Id. at ¶¶ 45-46.] Plaintiff contacted Defendant on Tuesday, February 14, 2006, and was informed that Defendant stood by its termination decision. [Id. at ¶ 48.]
Soon thereafter, Plaintiff filed a complaint with the Tennessee Department of Labor and Workforce Development ("TDOL") under the Tennessee Occupational Safety and Health Act, Tenn. Code Ann. § 50-3-409 ("TOSHA").*fn2 [Doc. 22, Attachments 1-3.] In response to an inquiry by TDOL, Defendant's General Counsel, Patricia M. Whaley ("Whaley"), sent TDOL a letter arguing that Plaintiff was not protected under TOSHA because he did not file a TOSHA complaint prior to his termination as required by Tennessee law. [Doc. 22, Attachment 1.] Whaley also disputed the facts as presented by Plaintiff.*fn3 [Id.] TDOL later contacted Plaintiff to inform him that his complaint was being dismissed without further action by the agency. [Doc. 22, Attachment 3.] Plaintiff was advised that he had the right to file a written appeal with the TDOL Commissioner. [Id.]
On October 24, 2006, Plaintiff filed the instant case. [Doc. 1.] On November 30, 2006, Defendant filed its first motion to dismiss. [Doc. 3] On December 20, 2006, Plaintiff filed his First Amended Complaint. [Doc. 7.] On January 11, 2007, Defendant filed its second motion to dismiss. [Doc. 9.] On February 5, 2007, Plaintiff filed his motion to certify questions to the Tennessee Supreme Court. [Doc. 12.] On March 5, 2007, Plaintiff was given leave to file his Seconded Amended Complaint, which was filed the same day. [Doc. 22.] On March 19, 2007, Defendant filed his third motion to dismiss. [Doc. 23.] Oral argument on the motions to dismiss and motion to certify was heard before the Court on May 22, 2007. After the hearing, the Court took all pending motions under advisement.
The three motions to dismiss all essentially the same, focusing on Plaintiff's common law retaliatory discharge claim. The third motion to dismiss also addresses the issue of judicial estoppel raised by Plaintiff in his Second Amended Complaint. The Court will address ...